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I'm being taken to court for a credit card debt, by an attorney/collection company other than the original company I owe the money to. I spent my retirement savings trying to pay it off. I can't afford an attorney. From the wording of the affidavit in the complaint, the attorney does not have the original signed credit agreement, a charge/payment accounting, and possibly not the transfer of debt document. Would it be better to wait until the actual court appearance to ask for these documents, hoping they will be less prepared? Or do I have to ask for them in my answer? The credit card company probably did everything legally, but they were distasteful in the ways they manipulated interest rates after my default.

Asked on 4/10/13, 5:07 pm

3 Answers from Attorneys

I think two types of cases are being mixed up. In a small claims case (Docket Number has SC in it and the amount must be less than $7,000) you do not need to file an Answer, but must appear for the hearing. The ability to ask for documents prior to the hearing (so called "discovery") is limited and can't be exercised without court permission. In a regular civil case (Docket Number has CV in it, and the amount could be anything) an Answer must be filed, then Discovery Requests must be served to find out what documents the other party has in their possession. You can choose to forego discovery as a strategic or cost-saving maneuver, but you risk being blindsided at trial. In a civil case there are at least 2 court appearances before a trial (case management conference and pre-trial hearing, plus any motions with a hearing date), you must demand a Jury Trial in your answer, or a jury is deemed waived, and you can be the subject of their discovery requests, with which you would have to comply.

"I spent my retirement savings trying to pay it off." Few things upset me more when I hear these words...and I hear them regularly.

Your retirement savings are protected by FEDERAL law. You should almost never drain retirement accounts to pay-off unsecured debts. If a debt collector has compelled you to do so, I am suspicious of their tactics. They may have violated State or Federal debt collection laws. As a consequence, you may be entitled to up to $1,000 in statutory damages, plus have all your attorneys fees paid.

If you have received any phone calls or letters attempting to collect this, or any other personal debts, in the last year, please contact me. I may be able to help at no cost to you.

"I'm being taken to court for a credit card debt, by an attorney/collection company other than the original company I owe the money to.I spent my retirement savings trying to pay it off. I can't afford an attorney. From the wording of the affidavit in the complaint, the attorney does not have the original signed credit agreement, a charge/payment accounting, and possibly not the transfer of debt document. Would it be better to wait until the actual court appearance to ask for these documents, hoping they will be less prepared? Or do I have to ask for them in my answer? The credit card company probably did everything legally, but they were distasteful in the ways they manipulated interest rates after my default."

Attorney Lev is correct, in that when and how you ask for things depends on the type of action, small claims v. civil. However, if you admit owing the debt, you may increase the costs associated with the debt by complicating the litigation. It is your right to have them prove their case, that's true, but it's also your obligation to be truthful - so if they ask you questions, either at the magistrate trial, or through discovery, it sounds like you should essentially be admitting your liability here. You may not have the ability to pay, but that is another issue.

I am not sure what you mean by "distasteful in the ways they manipulated interest rates after my default" - most credit card cardmember agreements make it very clear that your interest rate will sky rocket if you fail to pay as agreed. Most credit companies do apply that higher interest rate upon default per the contract. Unless, something else occurred, I am not sure that this would create any sort of waiver of liability for you.